Citation Nr: 0027941
Decision Date: 10/23/00 Archive Date: 11/01/00
DOCKET NO. 94-20 603 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for hypertension,
claimed as secondary to service-connected post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for a left knee scar,
claimed as residual to a shell fragment wound.
3. Entitlement to an effective date prior to November 7,
1994, for the assignment of a 100 percent evaluation for
PTSD.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. M. Daley, Counsel
INTRODUCTION
The veteran had active service from June 1944 to August 1946,
and from July 1950 to July 1951.
These matters are before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Waco, Texas,
Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that the veteran perfected an appeal with
respect to the matter of entitlement to service connection
for residuals of a frozen right hand and frostbite of the
feet. However, in a rating decision dated in July 1999, the
RO established service connection for residuals of frozen
feet and a frozen right hand, each assigned a separate zero
percent evaluation, effective January 12, 1998. That rating
decision represented a full grant of the benefit sought, i.e.
service connection.
As the veteran did not express disagreement with the "down-
stream" issue of the effective dates or disability
evaluations assigned to the RO's grants of service
connection, such matters are not before the Board. See
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an
appealed claim for service connection is granted during the
pendency of the appeal, a second notice of disagreement must
thereafter be timely filed to initiate appellate review of
the claim concerning the compensation level assigned for the
disability); see also Barrera v. Gober, 122 F.3d 1030
(Fed. Cir. 1997).
FINDINGS OF FACT
1. There is no competent evidence of record of in-service
hypertension, or hypertension manifested to a compensable
degree within the initial post-service year; nor is there
competent evidence of record relating diagnosed hypertension
to either of the veteran's active service periods or to any
service-connected disability.
2. A left knee scar pre-existed the veteran's entry into
active service and there is no competent evidence of record
showing increased left knee symptomatology during active
service, or otherwise showing a current left knee disability
related to active service.
3. In a rating decision dated in December 1992, the RO
granted service connection and assigned a 30 percent
evaluation for PTSD, effective July 27, 1992. The veteran
perfected a timely appeal with respect to the assigned
30 percent evaluation.
4. The RO amended the veteran's award to reflect assignment
of a 70 percent evaluation for PTSD, effective back to
July 27, 1992; the veteran then withdrew his appeal with
respect to the percentage evaluation assigned to his PTSD.
5. The RO next received an indication of the veteran's
intent to claim an increased rating for PTSD on November 7,
1994.
6. In a rating decision dated in May 1995, the RO increased
the rating assigned to PTSD to 100 percent, effective
November 7, 1994.
7. The veteran has not raised a claim of clear and
unmistakable error (CUE) in the RO's December 1992 rating
decision.
8. It was not first factually ascertainable within one year
prior to November 7, 1994, that the veteran met the criteria
for a 10 percent rating for PTSD.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
hypertension is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The claim of entitlement to service connection for a left
knee scar is not well grounded. 38 U.S.C.A. § 5107.
3. The criteria for an effective date prior to November 7,
1994, for the assignment of a 100 percent evaluation for PTSD
have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991);
38 C.F.R. § 3.400 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The report of medical examination dated in June 1944, at
entrance into the veteran's first period of military service,
includes note of a left knee scar. Such was again noted on
the report of medical examination at entrance into his second
period of service in 1950. Service records are negative for
note of any left knee injury during active service, or for
indication that the veteran's left knee scar became
symptomatic during service. Service medical records are
negative for note of elevated blood pressure levels or
diagnosed hypertension.
Service records indicate the veteran was engaged in combat
with the enemy and is in receipt of awards to include a Navy
Commendation medal and a Presidential Unit Citation for
extraordinary heroism against the enemy.
In September 1946, the veteran claimed entitlement to VA
benefits based on jungle rot; he did not offer arguments
pertinent to hypertension or his left knee.
A VA outpatient record dated in June 1992 notes complaints of
left knee pain and diagnosed arthritis of the left knee. The
veteran reported having incurred a shrapnel wound to the left
knee.
On July 27, 1992, the RO received the veteran's claim for VA
compensation benefits, to include entitlement to service
connection for PTSD. The veteran submitted lay statements
from family and friends pertinent to the changes in
personality he underwent after service and his problems with
remembering incidents of his military service.
In October 1992, the veteran presented for a VA examination.
The examiner noted that the veteran had had difficulty
holding employment due to conflict with management and
incompatibility since the mid-1960s. The veteran admitted to
drinking heavily, but not to the point of intoxication. The
examiner noted that the veteran had experienced increasing
irritability, a lower tolerance for stress and sleep
disturbance with depressive symptomatology. The veteran
complained of poor sleep and nightmares about combat. He
also reported wondering why he survived when others didn't.
The veteran was articulate at the time of the examination and
was fully oriented. The examiner noted that the veteran
described instances of attention loss that might represent
dissociative type phenomenon or flashbacks. The veteran's
thought content revealed free-floating anxiety and the
examiner also noted the veteran's tendency to patrol with a
weapon. The examiner assessed moderate impairment due to
PTSD.
A report of VA general medical examination dated in October
1992 includes note that the veteran had inadequately
controlled essential hypertension. The report of joint
examination includes note that the veteran was hit in the
left knee while in Okinawa. The examiner noted a scar across
the patella, and opined the veteran apparently had a soft
tissue wound only. The veteran reported treatment at a
Dallas Osteopathic clinic for two weeks after service. He
complained of current intermittent knee collapsing. Left
knee X-rays were normal. The diagnosis was a history of left
knee wound with no loss of motion.
In a rating decision dated in December 1992, the RO granted
service connection and assigned a 30 percent evaluation for
PTSD, effective July 27, 1992. The veteran perfected a
timely appeal with respect to the assigned 30 percent
evaluation.
The claims file contains records of VA psychiatric treatment
from June to January 1993. During meetings the veteran and
his physician discussed service memories. The veteran was
consistently found to be without signs of psychosis, or
suicidal or homicidal processes. The physician noted that
the veteran dealt with his memories by constraining himself
to a rigid routine and also noted that the veteran was
anxious. The assessment in June 1992 was severe PTSD.
Entries dated in early 1993 note a grim affect, without signs
of psychosis or any suicidal or homicidal processes.
In August 1993, the veteran testified at a hearing before a
hearing officer at the RO. The veteran reported feeling
comfortable in one room of his house, the "cage," and
indicated he did not have a pistol, but kept a knife next to
his bed and would get up at night to patrol. He indicated he
had a daily routine that included going to the Marine Corps
League office and writing a newsletter, but that he had
trouble communicating with his family. He indicated past
incidents of rage, without homicidal intentions or violence.
He complained of combat-related nightmares. At the time of
the hearing the veteran also discussed his left knee. He
stated that he had a left knee scar at service entrance but
that while in service he was hit with mortar and landed on a
rock on his knee. His representative indicated there were
statements from the corpsmen who treated the veteran in
service. He indicated his high blood pressure manifested
approximately 20 years earlier
In September 1993, the veteran presented for a VA
examination. The VA examiner noted that the veteran tended
to distance himself from his feelings. The veteran reported
that his sleep was troubled, and that he experienced moderate
anxiety. He denied depression; the examiner commented that
"he certainly looks that way." The veteran was neatly
dressed and fully oriented, but was described as moderately
depressed. The examiner further commented that the veteran's
feelings appeared blunted. The veteran's memory was good and
there was no evidence of psychosis, delusions, hallucinations
or organicity. The examiner opined that the veteran's
capacity to work was moderately to severely impaired and his
capacity to socialize was moderately impaired.
Subsequent to a hearing and examination, the RO amended the
veteran's award to reflect assignment of a 70 percent
evaluation for PTSD, effective back to July 27, 1992. The RO
informed the veteran of such decision by letter dated in
December 1993. In a statement received in January 1994, the
veteran wrote "I withdraw my appeal on issue of my s/c PTSD
which was raised from 30% to 70%." The veteran did not
include argument pertinent to his PTSD on the VA Form 9
received in April 1994. The RO confirmed the 70 percent
assigned rating in a decision dated in April 1994.
On November 7, 1994, the RO received a statement in which the
veteran indicated he "should have a claim pending for
PTSD...[i]f a claim is not pending for these conditions please
consider as a reopen claim." In a rating decision dated in
May 1995, the RO increased the rating assigned to PTSD to 100
percent, effective November 7, 1994.
In April 1995, the RO received a claim of entitlement to a
total rating based on unemployability.
VA outpatient records dated from late 1993 to 1997 include
psychiatric treatment notes. The veteran would discuss his
alcohol use and his service memories, as well as his general
health and welfare. Consistently he was found to be without
evidence of suicidal or homicidal intentions and without
evidence of psychosis. In September 1994 a major focus on
intrusive memories was noted.
VA outpatient records dated from February 1995 to October
1997 are of record. Such include note of the veteran's
diagnosed hypertension.
In December 1998, the veteran appeared for a VA examination.
He told the examiner he was struck by shrapnel on the front
of his left knee. Examination of the knee revealed a linear
scar. The examiner stated that there was no notable problem
involving disability of the knee at that time.
I. Service Connection
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1999).
Every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
examination, acceptance, and enrollment. 38 U.S.C.A. § 1132
(West 1991), 38 C.F.R. § 3.304(b) (1999).
A pre-existing injury or disease will be considered to have
been aggravated by active service, where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153 (West 1991);
38 C.F.R. § 3.306(a) (1999). Aggravation may not be conceded
where the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153;
38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402
(1995).
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and certain chronic
diseases, such as hypertension, become manifest to a degree
of 10 percent within one year from the date of termination of
such service, such diseases shall be presumed to have been
incurred in service, even though there is no evidence of such
diseases during the period of service. 38 U.S.C.A. §§ 1101,
1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999).
Service connection is also warranted for disability
proximately due to or the result of a service-connected
disorder and where aggravation of a nonservice-connected
disorder is proximately due to or the result of a service-
connected disability. In the case of aggravation, such
secondary disorder is compensable only to the degree of
disability over and above the degree of disability that would
exist without such aggravation. 38 C.F.R. § 3.310(a); Allen
v. Brown, 7 Vet. App. 439, 448, 449 (1995).
Service connection may also be granted for a disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
"[A] person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded."
38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507
(1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A
well-grounded claim is "a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of [section 5107(a)]." Murphy v. Derwinski,
1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992), the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter, "the Court")
held that a claim must be accompanied by supportive evidence
and that such evidence "must 'justify a belief by a fair and
impartial individual' that the claim is plausible."
For a service connection claim to be well grounded, there
must be (1) a medical diagnosis of a current disability; (2)
medical or, in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury
or disease and the current disability. See Anderson, supra;
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd,
78 F.3d 604 (Fed. Cir. 1996) (table).
Generally, medical evidence is required to prove the
existence of a current disability and to fulfill the nexus
requirement. Lay or medical evidence, as appropriate, may be
used to substantiate service incurrence. See Layno v. Brown,
6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993).
The Court has elaborated that the second and third Caluza
elements may also be satisfied under 38 C.F.R. § 3.303(b)
(1999), by the submission of (a) evidence that a condition
was "noted" during service or during an applicable
presumption period; (b) evidence showing post-service
continuity of symptomatology; and (c) medical or, in certain
circumstances, lay evidence of a nexus between the present
disability and the post-service symptomatology. Savage v.
Gober, 10 Vet. App. at 495-97. However, even under this
regulation, medical evidence is required to demonstrate a
relationship between a present disability and the continuity
of symptomatology if the condition is not one where a lay
person's observations would be competent. See Niemiec v.
West, No. 96-920 (U.S. Vet. App. Dec. 1, 1999) (per curiam)
(the Court found the veteran's claim not well grounded where
there was no medical evidence of a chronic psychiatric
disorder manifested in service, and where there was no
medical evidence linking a diagnosed post-service psychiatric
disorder to service); see also Clyburn v. West, 12 Vet. App.
296, 302 (1999); Wade v. West, 11 Vet. App. 302 (1998); Boyer
v. West, 11 Vet. App. 477 (1998), aff'd on reh'g, 12 Vet.
App. 142 (1999).
A secondary service connection claim is well grounded only if
there is medical evidence to connect the asserted secondary
condition to the service-connected disability. Wallin v.
West, 11 Vet. App. 509, 512 (1998); Velez v. West,
10 Vet. App. 432 (1997); see Locher v. Brown,
9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown,
7 Vet. App. 513, 516-17 (1995), for the proposition that lay
evidence linking a fall to a service-connected weakened leg
sufficed on that point as long as there was "medical
evidence connecting a currently diagnosed back disability to
the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37
(1994) (lay testimony that one condition was caused by a
service-connected condition was insufficient to well ground a
claim).
For the purposes of determining whether a claim is well
grounded, the Board must presume the truthfulness of the
evidence, "except when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion." King v.
Brown, 5 Vet. App. 19, 21 (1993).
The standard for establishing a well-grounded claim has been
described as very low. Hensley v. West, No. 99-7029 (Fed.
Cir. May 12, 2000). If a claim, however, is not well
grounded, the application for service connection must fail,
and there is no further duty to assist the veteran in the
development of his claim. 38 U.S.C.A. § 5107; see Schroeder
v. West, 12 Vet. App. 184 (1999); Murphy v. Derwinski,
1 Vet. App. 78 (1990).
Hypertension
The Board does not dispute that post-service records document
diagnosed hypertension. However, records associated with
both of the veteran's service periods are negative for note
of elevated blood pressure or diagnosed hypertension. See
38 C.F.R. § 3.303(a), (b). Moreover, there is no competent
evidence of diagnosed hypertension within the initial post-
service year. See 38 C.F.R. §§ 3.307, 3.309.
The veteran himself does not argue that hypertension first
manifested during service or within his initial post-service
year; rather, he argues that he developed hypertension
secondary to his PTSD. See 38 C.F.R. § 3.310(a). The record
does not reflect that the veteran possesses a recognized
degree of medical knowledge to render his own opinions on
medical diagnoses or causation competent. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). The claims file is
negative for any competent opinion relating hypertension to
service, or to service-connected disability. As such, the
veteran's claim is not well grounded and must fail.
Left Knee Scar
A left knee scar was clearly noted at entrance into the
veteran's first period of service. As such, the presumption
of soundness does not apply with respect to left knee
scarring. 38 C.F.R. § 3.304(b). The left knee scar was not
considered disabling at the time of the examination for
entrance into service. Inasmuch as the veteran received no
documented treatment for left knee scarring in service, and
as no change was reported on the examination for separation
from service, there is no evidence that the condition
increased in severity during service. Aggravation of a pre-
existing condition cannot be conceded where there is no
evidence that the disability underwent an increase during
service. 38 C.F.R. § 3.306(a).
The veteran himself argues that he landed on his left knee
during combat, incurring new injury. There is no indication
of such injury in service records. Here the Board notes that
combat veterans, such as the veteran in this case, are
afforded special consideration and are given the benefit of
the doubt in disability cases, i.e., in the case of any
veteran who engaged in combat with the enemy in active
service, satisfactory lay or other evidence that an injury or
disease was incurred or aggravated in combat will be accepted
as sufficient proof of service incurrence if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation in such service, and, to that end,
every reasonable doubt shall be resolved in favor of the
veteran. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §
3.304(d); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir.
1996).
However, the presumption afforded under 38 U.S.C.A. § 1154(b)
deals only with the question of whether a particular disease
or injury occurred in service, that is, what happened then,
and not the question of either current disability or nexus to
service, as to both of which competent medical evidence is
generally required. In short, the above-cited provisions do
not presumptively establish service connection for a combat
veteran; rather, they relax the evidentiary requirements for
determining what happened in service. See Brock v. Brown, 10
Vet. App. 155, 162 (1997); see also Wade v. West, 11 Vet.
App. 302 (1998); Velez v. West, 11 Vet. App. 148 (1998);
Libertine v. Brown, 9 Vet. App. 521, 524 (1996). The veteran
must still establish that his claim is well grounded by
medical evidence showing a nexus between a current disability
and the reported service incident. See Caluza v. Brown,
7 Vet. App. 498, 507 (1995). The Court has recently
clarified that the presumptions of § 1154(b) are applicable
to the in-service incurrence prong of the Caluza test, but
not to the elements of current disability or nexus between a
current disability and service. Kessel v. West, 13 Vet. App.
9 (1999) (en banc); see Summers v. Gober, No. 00-7019 (Fed.
Cir. Sept. 1, 2000).
In this case, the Board will not dispute the veteran's
account of further left knee injury during service. However,
a review of service records shows no indication that there
was any change in the severity of the veteran's left knee
scar during either period of service so as to demonstrate
aggravation, and in fact does not show any evidence of
manifested left knee disability at discharge. Moreover, VA
examination in 1998 revealed no currently notable left knee
disability. A claim for service-connection for a disability
must be accompanied by medical evidence that establishes that
the claimant currently has the claimed disability. Absent
proof of a present disability there can be no valid claim.
See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998);
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992).
In short, the record is entirely consistent in demonstrating
a left knee scar existing prior to service, without evidence
of current left knee disability due to an in-service shrapnel
wound, or evidence of any increase in severity of pre-
existing left knee scarring during service, see Maxson v.
West, 12 Vet. App. 453 (1999). Accordingly, the veteran's
claim is denied. See 38 C.F.R. §§ 3.303, 3.306.
Because the veteran's claims for service connection are not
well grounded, VA is under no duty to further assist him in
developing facts pertinent to those claims. 38 U.S.C.A. §
5107(a); 38 C.F.R. § 3.159(a) (1999); Epps v. Gober, 126 F.3d
1454 (Fed. Cir. 1997); see also Morton v. West, 12 Vet. App.
477 (1999), req. for en banc consideration by a judge denied,
No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam)
(holding that VA cannot assist a claimant in developing a
claim which is not well grounded). There is thus no duty on
the part of VA to afford the veteran an examination. See
Brewer v. West, 11 Vet. App. 228, 235 (1998).
The Court has held, however, that VA, in certain
circumstances, may be obligated to advise the claimant of
evidence that is needed to complete his application for
benefits. 38 U.S.C.A. § 5103 (West 1991 & Supp. 2000); see
generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996). This
obligation depends upon the particular facts of the case and
the extent to which VA has advised the claimant of the
evidence necessary to be submitted in connection with his
claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). The
Court has also held that the obligation exists only in the
limited circumstances where the appellant has referenced
other known and existing evidence. Epps v. Brown, 9 Vet.
App. 341 (1996). In the instant case, however, the veteran
has not identified any medical evidence that has not been
submitted or obtained, which will support well-grounded
claims for the above.
II. Effective Dates
In a rating decision dated in December 1992, the RO
established service connection for PTSD, effective July 27,
1992, the date the RO first received the veteran's
application for VA compensation benefits based on such
disability. At that time the RO assigned a 30 percent
evaluation, which the veteran appealed. However, after the
RO increased the assigned disability rating to 70 percent by
rating decision dated in December 1993, the veteran submitted
a written statement in which he clearly indicated an intent
to withdraw his appeal as to the percentage rating assigned
to PTSD. See 38 C.F.R. § 20.204 (1999). As such the
December 1992 and December 1993 RO decisions became final.
See 38 C.F.R. §§ 20.200, 20.204, 20.302 (1999).
A decision of a duly constituted rating agency or other
agency of original jurisdiction shall be final and binding on
all VA field offices as to conclusions based on evidence on
file at the time VA issues written notification in accordance
with 38 U.S.C.A. § 5104 (West 1991). 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. § 20.1103 (1999). Those final rating
decisions preclude assignment of an effective date prior to
December 1993. Lalonde v. West, 12 Vet. App. 377 (1999)
(holding that a claim made prior to a final denial cannot
serve as the basis for an earlier effective date); Perry v.
West, 12 Vet. App. 365 (1999).
A final and binding agency decision shall not be subject to
revision on the same factual basis except by duly constituted
appellate authorities or except on the basis of CUE, as
provided in 38 C.F.R. § 3.105 of this part.
38 C.F.R. § 3.104(a) (1999). The Court has provided that if
a claimant wishes to reasonably raise CUE "there must be
some degree of specificity as to what the alleged error is
and, unless it is the kind of error...that, if true, would be
clear and unmistakable error on its face, persuasive reasons
must be given as to why the result would have been manifestly
different but for the alleged error." Fugo v. Brown, 6 Vet.
App. 40, 43-44 (1993). The veteran has not in this case
expressed an intent to claim, or identified a basis for a
claim of, CUE in the prior RO decisions.
The RO confirmed the 70 percent rating assigned to PTSD in a
decision dated in April 1994.
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by the VA. 38 U.S.C.A. § 5101(a)
(West 1991); 38 C.F.R. § 3.151(a) (1999). Any communication
or action, indicating an intent to apply for one or more
benefits under the laws administered by VA, from a claimant,
his or her duly authorized representative, a Member of
Congress, or some person acting as next friend of a claimant
who is not sui juris may be considered an informal claim.
Such informal claim must identify the benefit sought.
38 C.F.R. § 3.155 (1999).
A claim for an increase is defined, in part, as any
application for an increase in rate of a benefit being paid
under a current award. 38 C.F.R. § 3.160 (1999). With
regard to the terms "application" or "claim", the Board
notes that once a formal claim for compensation has been
allowed, receipt of a VA hospitalization report, a record of
VA treatment or hospitalization will be accepted as an
informal claim for increased benefits, and the date of such
record will be accepted as the date of receipt of a claim.
38 C.F.R. § 3.157(b)(1) (1999); see also 38 C.F.R.
§ 3.155(a). The Board further notes that the Court has held
that VA has constructive knowledge of documents generated by
VA medical facilities even if such records are not physically
part of the claims file. Bell v. Derwinski, 2 Vet. App. 611
(1992).
The veteran next expressed an intent to obtain a higher
percentage rating for PTSD in correspondence received
November 7, 1994. Such is the date assigned to the
100 percent evaluation for service-connected PTSD. No other
correspondence or evidence indicating an intent to claim an
evaluation in excess of 70 percent for PTSD was submitted by
the veteran in the interim between the final December 1993
rating decision and November 7, 1994. Generally, under
applicable criteria, the effective date of an award of
compensation will be the date of receipt of the claim or the
date entitlement arose, whichever is the later. 38 U.S.C.A.
§ 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the
effective date of an award of increased evaluation shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of the application therefor.
38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The RO in
this case assigned an effective date as of the date of
receipt of the veteran's November 7, 1994, claim for
increase.
Applicable laws and regulations further set out, however,
that the effective date of an award of increased compensation
may be established at the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, if the application for an increased evaluation is
received within one year from that date.
38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
Also, with regard to the terms "application" or "claim",
the Board notes that once a formal claim for compensation has
been allowed, such as the grant of service connection and
assignment of a noncompensable evaluation for right shoulder
scarring in this case, receipt of a VA hospitalization
report, a record of VA treatment or hospitalization will be
accepted as an informal claim for increased benefits, and the
date of such record will be accepted as the date of receipt
of a claim. 38 C.F.R. § 3.157(b)(1) (1999); see also
38 C.F.R. § 3.155(a). The Board further notes that the Court
has held that the VA has constructive knowledge of documents
generated by VA medical facilities even if such records are
not physically part of the claims file. Bell v. Derwinski, 2
Vet. App. 611 (1992).
The Board has thus considered whether the medical evidence of
record is indicative of an increase prior to November 7,
1994.
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Schedule),
38 C.F.R. Part 4 (1999). The percentage ratings contained in
the Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999).
During the pendency of the veteran's appeal, the regulation
pertaining to the establishment of service connection for
PTSD was revised. Direct Service Connection (Post Traumatic
Stress Disorder), 64 Fed. Reg. 32,807 (1999) (codified at
38 C.F.R. § 3.304(f)). The change in the regulation was
effective March 7, 1997.
Before November 7, 1996, VA regulations provided that the
severity of a psychiatric disorder was premised upon actual
symptomatology, as it affected social and industrial
adaptability. 38 C.F.R. § 4.130 (1996). Two of the most
important determinants were time lost from gainful employment
and decrease in work efficiency. Id.
The pre-November 7, 1996, schedular criteria for PTSD provide
for a 70 percent evaluation where the ability to establish
and maintain effective or favorable relationships with people
is severely impaired and the psychoneurotic symptoms are of
such severity and persistence that there is severe impairment
in the ability to obtain or retain employment. A 100 percent
evaluation is warranted where the attitudes of all contacts
except the most intimate are so adversely affected as to
result in virtual isolation in the community: there is
evidence of totally incapacitating psychoneurotic symptoms
bordering on the gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound retreat
from mature behavior and where the veteran is demonstrably
unable to obtain or retain employment. 38 C.F.R. § 4.132,
Diagnostic Code 9411.
Effective November 7, 1996, 38 C.F.R. § 4.130, provides for a
70 percent evaluation where there is occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking or mood;
suicidal ideation; obsessional rituals which interfere with
routine activities; intermittently illogical, obscure, or
irrelevant speech; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control such
as unprovoked irritability with periods of violence; spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances; inability
to establish and maintain effective relationships. A 100
percent evaluation is warranted where there is evidence of
total occupational and social impairment due to gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living;
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name.
38 C.F.R. § 4.130 (1999).
In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the
Court held that where a law or regulation changes after a
claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the veteran should and will
apply unless Congress provides otherwise or permits the
Secretary to do otherwise. The rule in Karnas v. Derwinski
does not apply to case law but only to changes in statutes or
regulations. Brewer v. West, 11 Vet. App. 228 (1998).
VA's General Counsel has interpreted Karnas to mean that
where a law or regulation changes during the pendency of a
claim for increased rating, the Board should first determine
whether the revised version is more favorable to the veteran.
In so doing, it may be necessary for the Board to apply both
the old and new versions of the regulation. If the revised
version of the regulation is more favorable, the retroactive
reach of that regulation under 38 U.S.C.A. § 5110(g) (West
1991), can be no earlier than the effective date of that
change. The Board must apply only the earlier version of the
regulation for the period prior to the effective date of the
change. VAOPGCPREC 3-2000 (April 10, 2000).
In this case, for the period in question, only the old
regulation is for application. The Board notes that VA must
review all the evidence of record (not just evidence not
previously considered) to determine the proper effective
date. See Hazan v. Gober, 10 Vet. App. 511, 518 (1997).
However, the Court and VA's General Counsel have interpreted
the provisions of 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 as
meaning that if the increase occurred within one year prior
to the claim, the increase is effective as of the date the
increase was "factually ascertainable." If the increase
occurred more than one year prior to the claim, the increase
is effective the date of claim. If the increase occurred
after the date of claim, the effective date is the date of
increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet.
App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98
(1998).
A review of the evidence of record fails to reveal that an
increase in PTSD symptomatology was not factually
ascertainable within the year prior to November 7, 1994. His
wife's letter, received in December 1993, reported that the
veteran did feel close to his friends from the Marines and
that she and her husband were maintaining friendships, albeit
imperfectly. The VA outpatient treatment and examination
records for the period from September 1993 to November 1994,
consistently show that he had no psychotic symptoms. These
records also show that while the veteran, at age 67, was not
working, he was able to remain fairly active in activities
that included travel to Marine Corps reunions away from his
hometown.
In short, the records fail to show that the veteran was
virtually isolated, that he manifested totally incapacitating
psychoneurotic symptoms due to PTSD, or demonstrable
inability to maintain employment. Rather, he demonstrated a
continued ability to relate on some level to his family and
to maintain contact with veterans' organizations. He was
able to continue to function in a daily routine and did not
demonstrate suicidal or homicidal intents or any evidence of
psychosis. The record does not in any way suggest that the
veteran was unable to obtain or maintain employment as a
result of increased PTSD symptoms.
In sum, a review of the entire evidentiary record reveals no
records in the interim between the last final decision of
record and November 7, 1994 that may be accepted as an
informal claim for increase, and reveals no evidence that an
increase was first factually ascertainable within the year
prior to receipt of the November 1994 claim for an increase.
Accordingly, an effective date prior to November 7, 1994, is
denied.
ORDER
Service connection for hypertension, claimed as secondary to
service-connected PTSD, is denied.
Service connection for residuals of a shell fragment wound to
the left knee is denied.
An effective date prior to November 7, 1994, for the
assignment of a 100 percent evaluation for PTSD is denied.
Mark D. Hindin
Veterans Law Judge
Board of Veterans' Appeals